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SOME OBSERVATIONS ON THE STATUS 



OF CUBA. 



BY 



CARMAN F. RANDOLPH, 
Of the New York Bar. 



[Repented from YALE LAW JOURNAL for June, 1900.] 



SOME OBSERVATIONS ON THE STATUS OF 

CUBA. 

{Reprinted from Yale Law Journal, June, igoo ] 

The status of Cuba since the ratification of the Treaty of 
Paris is anomalous, and viewed as a whole it might be called 
unique, could this distinction be safely applied to any political 
condition. 

I venture some observations upon several features of the sit- 
uation, in the hope of making a contribution toward a right 
understanding of the position of Cuba and the responsibilities 
of the United States in its regard. 

I. 

The first paragraph of Article First of the Treaty of Paris 
reads: "Spain relinquishes all claim of sovereignty over and 
title to Cuba." Here is a parting with territory by Spain, yet 
there is no cession, nor even a surrender in the sense of a trans- 
fer. At the end of the peace negotiations Spain did what, at 
their commencement, she protested could not be done— she 
abandoned Cuba, after vainly striving to induce the United 
States to accept it from her hands. But the island, though 
abandoned, did not become a derelict, being straightway occu- 
pied, although not annexed, by the United States. 

In these circumstances Cuba remains as foreign, to our 
domestic system as it was when under the dominion of Spain. 
It is not within the purview of the Constitution nor any law of 
the United States. It is not within the jurisdiction of Congress, 
which is the legislature of the United States and not of any 
other country. This limitation of congressional power is pre- 
scribed by the rule that the acts of a legislature have no force 
in foreign territory, except, of course, as they may be held to 
affect citizens abroad. This rule is sometimes stated in terms 
recognizing the inability of one state to depreciate the sover- 
eignty of another by asserting jurisdiction in the latter's terri- 
tory, and were this the whole reason for the rule there might 
be difficulty in applying it to Cuba, where there is no state to be 
depreciated. But the sufficient reason for the rule is that a leg- 
islature is positively without jurisdiction beyond the limits of 
the country in which it is sovereign. 



The second paragraph of Article First of the Treaty of Paris 
reads: "And as the island is, upon its evacuation by Spain, to- 
be occupied by the United States, the United States will so long 
as such occupation shall last, assume and discharge the obliga- 
tions that may, under international law, result from the fact of 
its occupation, for the protection of life and property." 

In considering the nature and effect of this occupation from 
the standpoints of the different parties interested in Cuba we 
shall gain an approximate idea of the status of the island. 



II. 

From the standpoint of the United States Cuba is a foreign 
country in our occupation and control. 

The occupation is not beneficial to us as it would be, presum- 
ably, had we annexed the island. In fact, it is decidedly bur- 
densome, a vexatious result of a costly war waged for the avowed 
purpose of freeing Cuba from Spain in order to turn it over to 
its own people. However this fact may be esteemed in foreign 
chancelleries, or in Cuba itself, it entitles the United States to 
assert, upon occasion, any right, privilege or immunity that 
enures to a disinterested occupant of territory as distinguished 
from a sovereign proprietor, and leaves them responsible only 
for the discharge of the specific obligations of the Treaty of 
Paris, and such duties, sufficiently onerous, as may be attached 
by international law to an occupation of this peculiar kind. 

Our control over Cuba savors of the protectoral relation in 
important respects, yet it is not a protectorate, because, apart 
from uncivilized regions, the subject of this relation is a state 
of more or less substantial powers. 

There is no state of Cuba, and we shall only add to the 
embarrassments of a sufficiently difficult problem by tolerating 
such fictions as an embryo state, or even an effective sovereignty 
in the Cuban people. It is true that there are in operation in 
the island municipal and provincial systems of government and 
a complete judicial system, all officered by Cubans, but these 
agencies do not emanate from a local sovereignty. They exist 
by the ordination or permission of the United States. To be 
short, whatever sovereignty there is in Cuba to-day is vested 
in the representatives of the United States who administer the 
Government of Cuba. 



The Government of Cuba is, essentially, the President of the 
United States, the island being- ruled by his subordinates 
who execute his orders, or their own, which he adopts if he 
does not revoke. It cannot be said that this government is or- 
ganically independent of the United States, for the President 
enjoys his powers by virtue of his office, and in no respect 
either within or without the United States is that office sepa- 
i-able from the Federal Government of which it is a co-ordinate 
branch. The Government of Cuba is rooted in Washington, not 
in Havana. It is an offshoot of the Executive Department of 
the United States projected into and holding its place in a for- 
eign territory with the assent of Congress. Hence, although 
the island of Cuba is not within the jurisdiction of Congress, 
the Government of Cuba is subject to every power which the 
federal legislature is authorized to exert in regard to the Execu- 
tive Department. 

Whether Congress is competent to order this government to 
pass specific laws for the island, and thus legislate effectively 
for it through the medium of the Executive Department with- 
out bringing it technically within congressional jurisdiction, I 
do not discuss. The impropriety of this action should be a suf- 
ficent reason for avoiding it. 

Our control over Cuba may be called "military" in view of 
its origin, the agencies by which it is chiefly managed, and its 
freedom from the restraints of municipal law, yet it is not prop- 
erly identified with a military occupation of foreign territory 
contemplated by the laws of war. Our control should be, as it 
is, exerted less rigorously than a " military occupation," and in 
thus differentiating it I rely upon the persuasive ethics of inter- 
national law which discourage the application of belligerent 
right to a peaceful country. And Cuba is at peace, though pru- 
dence may forbid at present the diminution of our forces, and 
if need be the government may be called upon to display full 
military powers in the face of insurrection. I say " insurrec- 
tion " advisedly, because at the moment our government was 
established in Cuba it rightfully demanded the obedience of 
the people. 

While our control is less onerous than an ordinary military 
occupation, its activities are more varied and its responsibilities 
are heavier. 

The conqueror's strict duty to the inhabitants of the terri- 
tory is performed when he affords them such liberty of action 



and protection as the exigencies of honorable warfare permit. 
Our duty in Cuba is to govern a friendly country. And this 
brings us to the grave question as to the powers of our govern- 
ment over the lives and fortunes of the people. 

The fourth clause of the Joint Resolution of Congress, April 
20, 1898, reads: "The United States hereby disclaims any dis- 
position or intention to exercise sovereignty, jurisdiction or 
control over said island except for the pacification thereof, and 
asserts its determination when that is accomplished to leavethe 
government and control of the island to its people," and this 
was incorporated in the ultimatum delivered to Spain. " Paci- 
fication" is the master-word of the first part of the clause, and 
did this express a self-imposed law, we have broken it, for after 
stretching the word to the uttermost many of our acts in Cuba 
are hopelessly beyond its meaning. For example, the pacifica- 
tion of Cuba is not promoted by orders regulating the sponge 
fishery, 1 and prescribing that civil marriages only shall be 
legally valid. 2 The truth is "pacification" did not prefigure the 
great responsibilities and the sequent powers of the United 
States in taking charge of Cuba, and so far from breaking faith 
by assuming temporarily 'complete control they have per- 
formed a duty necessitated by the absence of a local govern- 
ment. 

The Government of Cuba is not bound by any law of the 
United States in its dealings with the people, nor by any law of 
the old regime which it may choose to alter or repeal. Yet, 
although it is not restrained by a municipal constitution of 
which the governed may take advantage, I should hesitate 
to define this government as despotic in theory, not merely for 
sentimental reasons, but rather because it is required by prin- 
ciple as well as by treaty to respect the dictates of international 
law. 

The government, however defined, is charged with the duty 
of administering Cuba and abating the grosser evils of the 
Spanish regime. And doubtless there is a field for remedial 
action beyond these imperative duties. But zeal for reform, a 
preference for the American way, which we understand over 
the Spanish way which we do not understand, should not lead 
to disturbances of fundamental law and inveterate custom un- 
becoming the office of a provisional ruler. 

1 General Brooke's Civil Report I, 109. 

2 Id. 44. 



s 

Our occupation is terminable at our discretion; and within 
our power is the method of ending it, though the brutal way of 
abandonment is practically out of the question. 

The United States may end the present occupation by chang- 
ing its character to sovereign proprietorship — by annexing the 
island. This can be accomplished only by Congress; the treaty 
making body, which usually enlarges the United States, being 
without jurisdiction in this case because there is no other gov- 
ernment competent to make a cession. 

Annexation by formal act would be the orderly course, but 
might not the same result be reached by Congress legislating 
for the island ? We are so accustomed to enlarge our dominion 
by formal consent of the titular sovereign of the desired terri- 
torv that we are apt to lose sight of the truth that land may be 
annexed as well by the actual assumption of jurisdiction by the 
President and Congress as by a treaty of cession. Said the 
Supreme Court, " Who is the sovereign, de jure or de facto, of a 
territory is not a judicial, but a political question, the deter- 
mination of which by the legislative and executive departments 
of any government conclusively binds the judges, as well as all 
other officers, citizens and subjects of that government. This 
principle has always been upheld by this court, and has been 
a -.firmed under a great variety of circumstances." 3 And Chief 
[ustice Marshall said: " If those departments which are in- 
trusted with the foreign intercourse of the nation, which assert 
and maintain its interests against foreign powers, have un- 
equivocally asserted its rights of dominion over a country of 
which it is in possession, and which it claims under a treaty; if 
the legislature has acted on the construction thus asserted, it is 
not in its own courts that this construction is to be denied. A 
question like this respecting the boundaries of nations, is, as 
has been truly said, more a political than a legal question, and 
in its discussion, the courts of every country must respect the 
pronounced will of the legislature." 4 

The principle of Marshall's opinion covers a broader field 
than the disputed boundaries of land ceded by treaty, which 
was the case in Foster v. Neilson. If the army of the United 
States seizes foreign land; if a treaty of peace does not mention 
hostile territory then occupied by our forces, thereby recogniz- 



3 Jonts v. U. S., 131 U. S. 202, 212. 

4 Foster v. Neilson, 2 Peters 253, 309, cited in U. S. v. Lynde, 11 Wallace 
», 63S. 



6 

ing our possession by the operation of the principle of uti possi- 
detis; if American officers take possession of unoccupied land in 
the name of the Republic, Congress, by legislating for these 
territories, may effect their incorporation in the United States. 
Now Congress is at present without jurisdiction in Cuba, but 
the island is in possession of our forces. If, then, Congress 
shall choose to make laws for Cuba, the legislative and execu- 
tive departments of our government will have asserted the per- 
fect sovereignty of the United States, and the courts will follow 
their lead, provided the assertion be unequivocal. 

Of course our courts would not recognize a statute of doubt- 
ful range as extending to Cuba. They would endeavor to con- 
strue a statute evidently intended to be operative in the island 
as an exertion of exterritorial power over our citizens abroad, 
and not a law of the place. And, though this suggests a most 
delicate question, it is possible that a statute plainly directed 
to Cuba might be so trivial in itself or so markedly at variance 
with the pronounced attitude of Congress that the court would 
properly treat it as ultra vires rather than infer the tremendous 
consequence of an enlargement of the United States from such 
doubtful evidence of intention. 

The method by which the United States are pledged to end 
their occupation of Cuba is to recognize a Cuban state. It is 
predicted that the pledge will be broken, or falsely kept by 
setting up a toy state that will cede the island to us in due form. 
Of these political forecasts I have only to say, at present, that I 
have yet to see the reason why the pledge should not be kept, 
and refuse to believe that the United States will play an hypo- 
critical trick to gain an end which, if improper, should not be pur- 
sued, and, if proper, should be gained by the straightforward 
method of annexation by act of Congress. 

III. 

From the Cuban standpoint the island is in a singular 
position. Severed from Spain; not joined to the United States; 
not the territory of a Cuban state; Cuba is in some sense 
merely a region administered by a foreign master. 

Yet although the island is not the seat of a state it possesses 
a marked characteristic of an organized society — a body of law: 
Spanish in origin, yet retaining its vitality after the withdrawal 
of Spain; alterable by the government we have established, yet 
never becoming United States law, this body is the law of the 



7 

place, and the fact of its existence makes Cuba to some extent a 
political entity. To this law of the place, both civil and criminal, 
all persons in Cuba are subject, including all foreigners except- 
ing our citizens whose connection with the army may subject 
them to the military laws of the United States. 

What is the status of the people of Cuba, including in this 
class the Peninsular subjects of Spain who have not elected to 
retain Spanish citizenship in conformity with the provision of 
the Treaty of Paris ? 

On April 20, 1898, Congress resolved "that the people of Cuba 
are, and of right ought to be, free and independent." In point 
of law, this resolution had no more effect in Cuba than a resolu- 
tion " that the Sultan of Morocco has and ought to have but 
one wife" would have in his palace. In point of fact, the reso- 
lution, so far as it dealt with the existing order of things, did 
not express a truth at the date of its passage — indeed, in the 
same breath Congress practically resolved to go war with Spain 
because the Cubans were not free and independent. Nor are 
they free and independent to-day. 

The Cubans are no longer subjects of Spain. Divested of 
Spanish nationality, by their own consent in the case of Penin- 
sulars who have cast their lot with Cuba, by the act of Spain in 
the case of Cuban-born subjects who were not given a right of 
election, they can be reintegrated only by complying with the 
provisions of Spanish law. The situation of men of Cuban 
birth who prefer Spanish citizenship is indeed a hard one, yet 
they cannot question the legality of the rupture of the old 
allegiance, for with the right of a sovereign to cede territory is 
coupled the right to disavow further responsibility for its inhab- 
itants. 

The Cubans are not, of course, citizens of the United States, 
nor are they technically our subjects, though if they can be said 
to owe allegiance to any political head it is to the government 
we have set over them. They have been called "citizens of Cuba," 
and so long as we understand their citizenship to be of that sin- 
gular kind that does not involve membership in the political 
society we call a state, we may accept this classification, which 
seems to be approved by the Treaty of Paris. The Ninth Arti- 
cle declares that if the Peninsular subjects of Spain residing in 
ceded or relinquished territories shall not within a certain time 
declare an intention to retain their allegiance, " they shall be 
held to have renounced it, and to have adopted the nationality 
of the territory in which they may reside." " Nationality " is 



evidently used in a political sense, and in order to give effect to 
this meaning in Porto Rico and the Philippines we must assume 
that the persons mentioned adopt the nationality of the United 
States, because as the United States have annexed these islands 
it would be as absurd to speak of Porto Rican or Philippine 
nationality as of Alaskan or New Mexican nationality. But as 
the United States have not annexed Cuba we can give effect to 
the provision in its regard only by accepting the theory of a 
Cuban nationality for what it is worth. 

A familiar principle of public law is that a radical change of 
government, however it may alter the public order of things, 
shall, of itself, affect private relations and rights as little as 
possible. 

The application of this principle to the domestic affairs of 
Cuba does not call for special consideration. It is sufficient to 
observe that rights vested under the old laws are not to be 
abrogated; that the old laws themselves endure unless they are 
altered by the provisional government; and that the people 
must receive from this government protection to person and 
property. Beyond these domestic affairs there are interests 
growing out of the intercourse between Cuba and the world at 
large, and to these the principle should be applied wherever 
practicable. 

Cuba is still within the domain of private international law, 
and I assume that the courts of foreign nations, including, of 
course, our own, will generally continue to apply their rules in 
international controversies, involving contracts, wills, marriages 
and the like, as though the island had not undergone a political 
change. 

Whether a foreigner may sue a person in the courts of the 
latter's country depends upon the local law, and it will be 
assumed that foreign courts heretofore open to Cuban subjects 
of Spain will not be closed to Cuban proteges of the United 
States. It is especially important that Cubans shall not lose 
any privileges in American courts because the United States 
have placed them in an anomalous position, and where proof of 
alienage is sufficient to confer jurisdiction there will be no 
question as to the propriety of entertaining their suits, for 
unquestionably they are aliens. Because the right to sue is 
accorded " to citizens or subjects of a foreign state," by the 
Constiiution of the United States, an effort has been made to 
bar Cubans from the federal courts, but Judge Lacombe has 
decided in their favor, saying of the defendant's contention: 



" There is certainly nothing' in all this which lends any color 
to the proposition that the plaintiff is not a foreign citizen. 
Even the brief memorandum of opinion in Stuart v. City of 
Easton (156 U. S. 46), gives no support to demurrant's conten- 
tion. One may be puzzled to determine upon what theory it 
was held in that case that a "citizen of London, England," is 
not a "foreign citizen;" but assuming, as suggested, that it is 
because London is not a free and independent community, but 
owes allegiance to the British Crown, the decision has no appli- 
cation to the case at bar, since the political branch of this gov- 
ernment has found as a political fact that the people of the 
island of Cuba "are free and independent." 5 May not Judge 
Lacombe's conclusion be upheld without lending judicial sanc- 
tion to the fiction of Cuban independence ? Even if we attribute 
to Cubans a sort of citizenship they are neither citizens nor sub- 
jects of a " foreign state," for there is no 'state ' of Cuba, and 
the government we have established is not " foreign." As the let- 
ter of the Constitution must be departed from to some extent to 
effectuate its meaning, why should not the provision be inter- 
preted, as a whole, in the broad spirit which animates it, and 
the courts be declared open to persons who show that they are 
not citizens of the United States ? 

Besides international controversies determinable in the 
courts, there are private interests recognized by the law and 
custom of nations as being the proper subjects of diplomatic 
assistance or negotiation, and for which individuals may request 
the good offices of their government. Regarding the common 
protection and privileges to which persons in foreign countries 
are entitled by international law, the diplomatic and consular 
•offices of the United States may be exerted in behalf of Cubans 
as nearly to the extent of their exertion for our own citizens as 
the rules of foreign governments and our own permit. 

Generally speaking, our concern for Cubans abroad cannot 
be properly questioned by a foreign government, for these rea- 
sons: Because the relation between a state and a person for 
whom it claims protection is no concern of a foreign state 
unless it claims him as its own citizen, and we shall not meet 
this embarrassment because Spain has completely denational- 
ized her Cuban subjects: Because as foreign governments are 
entitled, as we shall see, to view the United States as the pro- 

5 Betancourt v. Mutual Reserve Fund Life Association, N. Y. Law Jour- 
nal, May 15, 1900. 



tector of the interests of their subjects in the island, they will 
not disavow the reciprocal duty of safeguarding Cuban interests 
in their own dominions. 

The fact that Cubans cannot receive United States passports, 
which are issuable to citizens only, is not especially detri- 
mental. The State Department has approved the issuance of 
the following consular certificate to an American Indian: "The 
bearer of this document is a North American Indian whose 
name is Hampa. This Indian is a ward of the United States, 
and is entitled to the protection of its consular and other 
officials. He is not, however, entitled to a passport, as he is 
not a citizen of the United States. This consulate has the 
honor to request the Russian authorities to grant Hampa all 
necessary protection during his stay in Russia, and grant him 
permission to depart when he requires it." ° The State Depart- 
ment may issue suitable certificates to Cubans — probably it has 
already done so — and these will be honored abroad as our 
Indian certificate seems to have been, and as the passports 
issued by Great Britain and France to persons not their 
citizens, but within their protection, are honored. 

Whatever rights under Spanish treaties Cubans may have 
enjoyed abroad as Spanish subjects have been lost by the 
severance of Cuba from Spain. Whatever rights may be 
secured to them by the treaty of Paris are enforceable by the 
United States, at least during the term of their control. 
Whether the United States shall be disposed to request and be 
able to secure for Cubans the benefit of treaty rights in foreign 
lands enjoyed by their own citizens depends upon the nature 
of the particular right in question. There is no dou.bt that the 
benefit of our consular jurisdiction in non-Christian countries 
should be claimed for Cubans. On the other hand, it would be 
absurd for the United States to demand for them the fishing 
rights on the Northeast coast secured to the people or citizens 
of the United States by treaty with Great Britain. 

IV. 

The distinction between Cuba and the United States which 
we maintain as a matter of domestic law and polity is not alto- 
gether effective from the standpoint of foreign nations. 

When a region is occupied by a foreign state, other states 
are not necessarily affected by the motive of the occupation, so 
far as their current intercourse is concerned, and, in their 
reasonable demand for a visible and responsible head to a 

6 Hunt's The American Passport, p 147 



country with which they deal, are entitled to treat the occu- 
pant as the sovereign for certain purposes. And it is the in- 
terest as well as the duty of the occupant to accept the proper 
responsibilities of the position, because if these be disavowed 
the country may be left without a government, and in this 
event a foreign state being unable to protect its lawful in- 
terests by negotiation, may at once employ adequate force. 

From the standpoint of foreign nations Cuba is in some 
sense part of the United States, and the United States accept 
this conclusion of international law. 

According to the first article of the Treaty of Paris already 
cited, " the United States will, so long as such occupation shall 
" last, assume and discharge the obligations that may, under 
" international law, result from the fact of its occupation, for 
" the protection of life and property." While this clause is part 
of a treaty with Spain, and does not import an agreement with 
any other nation, it is really but the acknowledgment of an in- 
dependent obligation to all nations. And it may prove to be 
an inadequate acknowledgment, for if, perchance, there be any 
international duty not included in "the protection of life and 
property, " the United States cannot honorably avoid the conse- 
quences of a breach of it by referring to the treaty as the 
measure of their responsibility. 

In considering our duties to foreign nations in regard to 
Cuba we must first differentiate Spain from the generality in 
regard to the special agreements made with her in the Treaty 
of Paris. Apart from the law of the Treaty of Paris, by which 
Spain is particularly bound and benefited, she stands with the 
other nations in respect of international rights and obligations. 

The foreign responsibilities cast upon an occupant in the 
case of occupation of hostile territory during war, when inevi- 
table disorder may excuse unavoidable defaults, and when the 
ousted sovereign has still a legal title to the country, and may 
regain possession by reconquest or treaty, are broader and 
heavier in Cuba, where order reigns if not contentment, and 
whence the old sovereign has departed leaving the representa- 
tives of the United States in full control. 

' Without attempting to forecast the possible reclamations 
that may be made against the United States on Cuban account, 
it should be'understood by the Cubans that if the United States 



T,*§ 



JUN 20 1900 



"become liable for a pecuniary indemnity they will place the 
real burden where it belongs. If the injury be caused by the un- 
lawful act or omission of United States citizens, the indemnity 
should be charged upon the Federal Treasury. On the other 
hand an indemnity due on account of the acts of Cubans should 
be charged to Cuba, and paid either out of insular revenues, or 
by Cuban obligations which the United States should guarantee 
to the creditor and enforce against the debtor. 

Carman F. Randolph, 

of the New York Bar. 



LIBRARY OF CONGRESS 



^015 819 590 2 f 



